An ever persistent problem facing employers is what to do with the employee who is chronically sick or has a serious health problem. Besides the obvious issues it presents to the employer- additional strain on other employees to pick up the slack; inability to properly staff and manage work loads; basic coverage concerns- there are also potential state and federal legal ramifications if the absences are not handled and documented correctly.
What laws apply?
- Family Medical Leave Act. There are federal and state FMLA laws you need to be aware of.
- Americans with Disabilities Act.
- Wisconsin Fair Employment Act or your particular state employment laws.
Other Legal Considerations Besides the Employment Laws
- Employer handbook policies on leaves of absence.
- Short term/Long term disability policies.
- Worker Compensation claims.
Many of these laws overlap while others conflict with each other. Some laws have light duty options (workers comp) while others do not (FMLA). Navigating the laws and facts often presents a difficult situation.
Steps to Managing a Chonically Ill Employee Effectively
Step 1: Determine the nature of the employee’s health problem.
- Is it physical or mental? If physical, is it a workers compensation issue? If so, that paper work must be immediately filled out.
- Does the health problem impact the employee’s ability to perform the essential functions of his or her job? Can the employee work the current schedule and are there any physical limitations?
- Review and obtain information necessary to understand any physical limitation(s).
- Review the job description and have the employee provide a letter from his/her physician describing what limitation(s) are involved.
- Determine whether the duration of the problem will be short term or long term.
- If the employee does not cooperate with this process you can continue to treat the employee as if he/she does not have any limitations; the exception being mental illness in which case the employer has a greater duty to “lead” the employee.
Step 2: Determine how the health problem impacts the employer.
- Can the limitations be accommodated? Examine revised schedules, light duty work or adjustment of job duties.
- If there is no accommodation, the employer has the burden to show that any accommodation would be “undue hardship”.
- If no accommodation, the employer must also analyze whether short term disability, FMLA leave or other unpaid leaves of absences are available. Be sure to have any and all leave paperwork completed in a timely manner and track all leave taken.
- Make sure to differentiate between any leave available under federal FMLA and state FMLA but make sure to count all leave taken as FMLA.
- Before allowing the employee to become eligible for unemployment compensation, determine if the employee is available for work and re-evaluate any light duty options.
Step 3: Tracking health status and available leave.
- Obtain health updates. The employer is allowed to require the employee to keep you informed as to their condition. This requirement should be communicated to the employee in writing along with any consequences for noncompliance.
- Track FMLA leave according to policy whether it’s a rolling or calendar period.
- Be aware of the nuances associated with intermittent FMLA leave and be sure to track any irregular absences.
Step 4: Return to work.
- Require a medical release to return. An employer can require that the employee present a Fitness for Duty Report from the treating physician. This should always be done to ensure the employee is capable of returning to work safely.
- Be cognizant that there might be a limited release. Here the employee can work but with limitations while he/she continues to heal. Understand the restrictions and ask for clarification if uncertain. If this may be an ADA issue, the employer must be cautious and engage the employee in the interactive process to determine if a position can be modified without creating undue hardship to the employer.
Step 5: Recurring issues.
- In the event of a relapse, accurate records of prior leave time is essential. Review handbook policies on all leaves of absences and the amount of leave available.
- Complete a second round of the ADA interactive process/analysis.
- Document and prepare paperwork for everything.
There is no guaranteed perfect way to treat employees with serious health problems. The keys are recognizing there is an issue, applying all of the applicable laws to the situation, attempting to work with the employee throughout the process and documenting everything as accurately as possible.
